National security has been a recurring theme throughout these mergers. Lawyer Bruce Afran has studied the merger documents that Verizon, AT&T and BellSouth have exchanged with the FCC. He says, "All used national security concerns as a basis for justifying these mergers. It looks like they [the telecommunications companies] are signaling that this is the quid pro quo -- we've done what you need for security purpose. Now you do what we need."

In a June 2006 Senate judiciary subcommittee meeting on the BellSouth/AT&T merger, Sen. Herb Kohl's (D-Wis.) opening remarks got straight to the point: "As the market consolidates, Government eavesdropping is possible merely with the assent of fewer and fewer large phone companies than before." The Department of Justice has been so eager to muscle the mergers through that they have garnered a fair amount of attention -- and with good reason.

To explain how egregious the Department of Justice has been in selectively regulating telecommunications mergers, it's helpful to go back to the Nixon years. In 1974, something called the Tunney Act was signed into law, a response to a backroom deal in which, in exchange for campaign contributions, Richard Nixon's DoJ squelched antitrust investigations into a huge telecommunications company called ITT. The smoking gun came in the form of an internal ITT memo leaked to The Washington Post. It was a transgression serious enough to have been included among the articles of impeachment against Nixon.

When the SBC/AT&T and MCI/Verizon deals were approved by the DoJ and FCC, with only minor conditions to address antitrust concerns, the independent judicial review mandated by the Tunney Act became important. A former employee of the American Antitrust Institute explains, "The DoJ was so sure that the judge would rubberstamp the deals that they gave the parties license to close the transaction before Tunney review was complete." Indeed, AT&T and Verizon had already effectively merged with other corporations, whether or not the mergers were ultimately determined to be legal. In a November hearing, a testy federal judge named Emmet Sullivan challenged a confident Verizon lawyer who claimed that the Verizon merger was already closed and pleasing customers. "If the merger is closed," said Sullivan, "why are we here then?"

The DoJ learned from its mistakes in heeding even the semblance of law, and when the proposed BellSouth/AT&T merger was announced, instead of a formal consent decree that requires Tunney review, the DoJ simply released a press statement claiming that it found no competitive issues in the largest merger in American history. It is, as antitrust experts have noted, a complete end run around the Tunney Act.

The Tunney Act, as a former employee of the American Antitrust Institute explains, is not important if the Justice Department is being vigorous in its enforcement of the laws. "When the DoJ starts being overly lax, the Tunney Act becomes more important. That's the idea of the Tunney Act: to not let the Justice Department decide to give the store away. They're getting pushbacks from the court because the court perceives that they're not being tough enough on the parties."

Where a concerned customer, or a journalist for that matter, can locate the status of the FCC negotiations over the AT&T/BellSouth merger is something of a mystery. Neither FCC official I met with in Washington would tell me whether the government data-mining programming was even being discussed. And while Democrats have since taken control of the House and Senate, there is currently no investigation into the relationship between telecommunications companies and the White House. Hard to imagine, considering how widely the relationship has been publicized. Bob Woodward made the direct relationship amply clear in his book "State of Denial":

Over the years, [CIA Director George] Tenet had negotiated agreements with telecommunications and financial institutions to get access to certain telephone, Internet and financial. ... Tenet personally made most of the arrangements with the various CEOs of the companies. They were very secret, among the most sensitive arrangements, and based largely on informal understandings. Tenet had been very good at this, playing the patriot card and asking CEOs to help on matters of national security.

Unchecked power

The FCC's gridlock over the AT&T/BellSouth merger ended with approval. The so-called compromise was that AT&T vowed to support Net Neutrality, though FCC Chairman Martin made clear that he did not support the decision, releasing a statement stating that the order "does not mean that the commission has adopted an additional Net neutrality principle. We continue to believe such a requirement is not necessary ... although AT&T may make a voluntary business decision, it cannot dictate or bind government policy. Nor does this order." What rules AT&T follows are, it seems, up to the corporation. As per the FCC's merger stipulation, AT&T has started selling a $10-per-month DSL service. The catch? AT&T hasn't advertised it, preferring that consumers pay the higher price for the same service.

While the legality of previous mergers is under review in court, the Justice Department is pushing to further accelerate merger reviews of favored deals. A draft of a merger policy document reads: "The staff is encouraged to be as aggressive as possible during the initial 15- or 30-day waiting period in attempting to identify transactions that do not require further investigation." That kind of brazenness is mirrored by telecommunications leadership.

FCC commissioners, for example, worked with AT&T and BellSouth to try to negotiate conditions for the merger, but AT&T was resistant to accepting any regulations. Ask why it's being so obstinate and you'll get a fairly straightforward response in Washington. As telecommunications analyst and Capitol Hill veteran Jessica Zufolo put it, "This is a company that is very accustomed to getting their way."

So close have the large telecommunications companies grown with the White House that, in a recent legal filing in New Jersey, AT&T and Cingular (co-owned by AT&T and BellSouth) made reference to their right to maintain the state secrets privilege. "To which we answer very simply that the state secrets privilege can only be invoked by the federal government," says Anne Milgram, recently sworn in as New Jersey's attorney general.

When the New Jersey attorney general's office subpoenaed telecommunications companies in the state in order to find out whether they were sharing consumer information with the federal government, rather than receiving responses from the telecommunications companies it received notice from the Department of Justice, which sued the New Jersey attorney general's office for even posing the question. Milgram says she has never heard of this before. "Why is it OK for the phone companies to give that information to the NSA but not OK for the state to ask for the information?"

Milgram's voice, though calm, rises in pitch during an interview: "The NSA trusts the phone companies to give them that information, but won't trust a state attorney general to get that information."

One of the more telling on-the-record exchanges occurred in a June 2006 Senate Judiciary Committee meeting on the BellSouth/AT&T merger. Sen. Arlen Specter asked AT&T's Whitacre whether the company provides customer information to the government. To which Whitacre responded only with a parroted, "I will tell you that we follow the law, we don't break the law." When you read the transcript, you can almost hear Specter's blood pressure rise as he pushes back.

Specter: Are you declining to answer my question, Mr. Whitacre?

Whitacre: We follow the law, Senator.

Specter: Does AT&T provide customer information to any law enforcement agency?

Whitacre: We follow the law, Senator.

Specter: That is not an answer, Mr. Whitacre. You know that.

The exchange continues for pages until Specter gets fed up, telling Whitacre, "You said that. I don't care to hear it again," ultimately stating for the record that the response is contemptuous of the committee. And while Whitacre insists that AT&T protects consumer information, he also has to field questions about a recent AT&T policy change whereby confidential consumer information is now deemed the property of AT&T and can be used to "safeguard others." A former policy assured consumers that their information would be released only by subpoena or court order. Whitacre's response: "We wanted to make our policies easier to read." One telecommunications analyst present noted that "Specter had smoke coming out of his ears ... nobody refuses to answer questions raised in that situation unless they've got some pretty powerful backup."

William Rogers, former secretary of state to Nixon, once stated that "the public should view excessive secrecy among government officials as parents view sudden quiet where youngsters are playing. It is a sign of trouble." It is arguably true that, in the digital age, certain telecommunications mergers do stand to benefit the consumer. It is also a true that it has become more important for those in national security to work closely with telecommunications companies. But to muscle through a telecommunications monopoly and eradicate the Fourth Amendment and consumer rights of Americans under the guise of "national security" is without justification. The incredible silence with which both the telecommunications companies and White House have met inquiries not just from Americans in general and journalists, but from state attorneys General and other government officials, is certainly a sign of trouble.

This past April, the White House went back to Congress to ask for a revision of FISA laws. Without addressing the ongoing data-mining scandal, President Bush requested that "unintentionally" obtained information be saved and used for intelligence purposes. The revision would also require telecommunications companies to cooperate with investigations and prevent companies from being sued by consumers for sharing information. Not surprisingly, Bush is requesting that this legal protection apply retroactively to companies that have already cooperated with the government.

Research made possible in part by a Nation Investigative Fund grant.

Onnesha Roychoudhuri is a San Francisco-based writer. A former assistant editor of, she has written for AlterNet, The American Prospect,, In These Times, Huffington Post, Truthdig, PopMatters, and Women's eNews. She can be reached at onneshatao(at symbol)